THE VALUE OF PRIVACY IN

THE LIBERAL STATE

Jeffery L. Johnson

Philosophy, Politics, & Economics

Eastern Oregon University

I intend neither a detailed investigation, nor defense, of the liberal state. I begin, therefore, not with a scholarly analysis, but with a piece of political rhetoric that captures some of the basic values shared by most liberals.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.⁽¹⁾

Jefferson, borrowing extensively from Locke, sees the individual as central to the normative and political order. Individuals possess strong - perhaps natural, or divine - rights. These rights are strictly egalitarian, possessed by each one simply in virtue of his or her basic humanity. Law and government are justified in terms of their ability to protect individuals and their rights through some show of voluntary consent.

I have no grand theory of moral and political rights to defend. I am suspicious, of course, of blanket appeal to some cosmic or theological source for strong individual rights. But, at the same time, I see nothing nonsensical in a shared value that provides a tangible social and legal protection to individuals. Mill nicely states such a conception.

I have, throughout, treated the idea of a right residing in the injured person and violated by the injury, not as a separate element in the composition of the idea and sentiment, but as one of the forms in which the other two elements clothe themselves. These elements are a hurt to some assignable person or persons, on the one hand, and a demand for punishment, on the other. . . . When we call anything a person's right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law or by that of and opinion.⁽²⁾

It remains to be seen, of course, exactly what sort of defense can be mounted in support of the individual's claim to societal and legal protection. With an alleged individual right like the right to privacy, for example, the kind of appeal to efficiency and social utility that Mill so favored will be very difficult to sustain. The difficulty is that we have no problem in granting individuals their privacy until it become socially inconvenient to do so. As soon as issues of public heath and safety, efficient law enforcement, and the like are raised, however, than the strictly utilitarian considerations potentially point away from the individual and strong privacy protection. Privacy advocates will, therefore, have their work cut out for them in demonstrating why the liberal society would still see fit to honor the individual's privacy claim when it is expensive and potentially harmful to so.

Before leaving the general issue of liberalism I want to briefly address the claim that law and government, in the abstract, can only be adequately justified by the consent of the individuals living under it. There is something beautiful and inspiring in Hobbes', and particularly Locke's, vision of the social contract. Unfortunately, I take it to be obvious that such a self-contained normative justification for political coercion ultimately fails. Thus, classical liberalism as logically complete defense of government remains, I fear, irreparably flawed. The social contract argument as a solution to a prisoner's dilemma problem does show us why law is in each of our individual best interest. And a shared conception that these interests extend beyond social order to more personal concerns such as life, liberty, property, and the pursuit of happiness, remains a normative vision worthy of philosophical endorsement.

II.

Our interest in privacy, I argue, is related to our concern over our accessability to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others attention. This concept of privacy as concern for limited accessability enables us to identify when losses of privacy occur. Furthermore, the reasons for which we claim privacy in different situations are similar. They are related to the functions privacy has in our lives: the promotion of liberty, autonomy, selfhood, and human relations, furthering the existence of a free society.⁽³⁾

I seek a modal of privacy, unified if possible, that will be the simplest, most complete, less ad hoc, and most plausible. The following are some interesting candidates in the recent literature.

"Privacy is the condition of not having undocumented personal knowledge about one possessed by others."⁽⁴⁾

(The right to) privacy is (the right) "not to be watched, listened to, reported upon without leave, and not to have public attention upon one uninvited."⁽⁵⁾

"The realm of the private to be whatever is not, according to a reasonable person in normal circumstances, the legitimate concern of others."⁽⁶⁾

"Our interest in privacy, I argue, is related to our concern over our accessability to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others attention."⁽⁷⁾

Privacy is "the realm in which the actor . . . can legitimately act without disclosure and accountability to others."⁽⁸⁾

Privacy concerns those "aspects of a person's life which are culturally recognized as being immune from the judgments of others."⁽⁹⁾

I believe that these accounts taken together tell us most everything we would want to know about the nature of personal privacy. I am looking for a model that can be stated in a relatively short phrase, and will get at the core of privacy in language that is perspicuous.

Rather than proceeding in a serial fashion to expose flaws in each of the proposed analyses, I want to simply articulate my current hypothesis about the nature of personal privacy, and then try to show how well this model fits into most every context where we are tempted to appeal to privacy. My starting point is the common intuition that privacy protects what is no one else's business.⁽¹⁰⁾ Or, as DeCew put it, what is the legitimate concern of others. What is it for another to make something about me his business? What is it for another to concern herself with me? I suggest that it is a kind of intellectual and emotive "focusing" on a person. I now think personal privacy is best seen as demarcating those areas of a person's life that are culturally (and legally) recognized as being immune from the illegitimate focused attention of others.

We can know things about people without violating their privacy; we can judge them, concern ourselves with them, listen to them, report on them, have physical access to them, and in the same spirit, we can focus our attention on them. Privacy is not an absolute block on others focusing their attention on us. It's rude if you don't focus on what I'm saying in an intimate conversation, and I get annoyed when my students don't focus their attention on me when I am lecturing. Privacy norms stipulate very limited contexts in which individuals are granted this special immunity from focused attention. This point is fairly obvious, but is consistently passed over in the literature. Ruth Gavison, for instance, makes the following remarkable claim.

In its most suggestive sense, privacy is a limitation of others' access to an individual. As a methodological starting point, I suggest that an individual enjoys perfect privacy when he is completely inaccessible to others.⁽¹¹⁾

This is utterly implausible. Complete isolation is far from a normative ideal like personal privacy; it is a tragedy or a punishment. Complete isolation does have the almost accidental by-product of guaranteeing the individual limitation of access by others. In the terms I am advocating, complete isolation guarantees the complete absence of focused attention on the part of others, and this guarantees that those areas where appropriate conventions guarantee immunity for illegitimate focused attention on the part of others. This is sort of like arguing that the absence of pain from arthritis of the knee is a good thing, so morally good surgeons should remove arthritic legs at the hip.⁽¹²⁾

To say that privacy grants to individuals an immunity from the focused attention of others is, of course, to leave as yet unanswered questions about what these contexts of immunity are, or why they are important. There are very different contexts in which privacy is accorded. Although cultural conventions play a large part in what counts as private, even within the same culture we will see that immunity from the focused attention of others plays very different role in sexual privacy, informational privacy, and privacy involved in "fundamentally important decisions." Thus, the divergence of privacy claims and concerns can be explained in terms of the culture's granting of different areas where immunity from the illegitimate focused attention of others holds. What counts as private is that this immunity is conferred, but what makes privacy appear to be ambiguous is that it is conferred in very different contexts, and for very different reasons.

III.

One of the most persistent mistakes in normative philosophy, generally, and philosophical jurisprudence, in particular, is the instinct to see consequentialist and deontological reasoning as antagonistic, and mutually exclusive.

[I]s privacy's value best described in consequentialist or deontological terms? Case law mentions that privacy is valuable for such diverse purposes as "promotion of free discourse," "to secure conditions favorable to the pursuit of happiness," "leading lives in health and safety" in the home, "to keep secret or intimate facts about oneself from the preying eyes of ears of others," and the promotion of personal relationships. With claims such as these, the courts suggest that privacy is valuable because of its desirable consequences. Yet there is also a deontological strand in legal privacy theory. The law contains suggestions that privacy's value stems from respect for "man's spiritual nature," "individual dignity," and "inviolate personality." Since a consequentialist account of privacy's value will ultimately clash with a deontological account, we must arbitrate between them if we decide that privacy does possess an independent value.⁽¹³⁾

Arbitration is not only unnecessary, it will prove misleading. Privacy rules, like moral and legal rules generally, embody both forward-looking and backward-looking perspectives.

Any system of rules must have at least a superficial perspective on the future. If we assume that maximal freedom and autonomy are basic goods, and that any genuine system of rules constrains possible behavior to some extent, then there must always be some reason why we should have the rules rather than do without them. The justification of a system of rules will always encompass the argument that the world will be better with the rules than it was without them. From the very general perspective of political theory, we see such an appeal in the classical social contract argument. We see it in a much more focused form in the debates on tougher criminal sentencing as a tool for controlling violent crime. It may well be that extending legal protection from the illegitimate focused attention of others is partially justified in different contexts by all of the consequentialist reasons that Julie Inness recounts from privacy law.

None of this is incompatible with the equally tangible perception of a backward perspective to a system of rules. Once we have a system of rules, once the constraints are recognized as binding, then violations will engender a temptation to go back in time and "make things right." When someone fails to respect my immunity from their illegitimate focused attention my moral feelings have little to do with making the world a better place in the future. The miscreant had a duty to respect privacy conventions and laws, a duty that was egregiously violated. My concerns tend more to what justice demands, to what is fair and right.

John Rawls saw this simultaneous backward and forward looking aspect of rules as clearly as anyone. His particular focus is philosophical defenses of criminal punishment, but the point is generalized later in his classic article, "Two Concepts of Rules."

One can say, then, that the judge and the legislator stand in different positions and look in different directions: one to the past, the other to the future. The justification of what the judge does, qua judge, sounds like the retributive view; the justification of what the (ideal) legislator does, qua legislator, sounds like the utilitarian view. Thus both sides have a point (this is as it should be since intelligent and sensitive persons have been on both sides of the argument); and one's initial confusion disappears once one sees that these views apply to persons holding different offices and duties, and situated differently with respect to the system of rules that make up the criminal law.⁽¹⁴⁾

I fear Rawls' desire for a strictly institutional separation between consequentialism and deontology is just too tidy. Ideal legislators will certainly place heavy emphasis on the short and long-term consequences of enacting a new rule. But they may also justify their actions on deontological considerations of justice, fairness, and intrinsic value. Clearly trial and appellate judges feel bound to some degree by past law and precedent. But what could be more obvious than the fact that good adjudication requires some consideration of the social and precedential consequences of particular rulings? The truth is, I believe, that any robust system of rules will always depend on both the forward-looking perspectives of utilitarianism, economic efficiency, and the like, while at the same time equally embodying the backward-looking perspectives of concerns with duty, virtue, and corrective and retributive justice.

IV.

The forward-looking approach to the value of personal privacy directs us toward discovering those things that privacy contributes to our personal and social well-being. It seems clear to me that privacy conventions and rules make two fundamental contributions - they make us happier and more content, and they allow us greater social and legal freedom. Any adequate explanatory account of privacy must acknowledge both of the functions of a culturally defined immunity from the focused attention of others.

Privacy scholars occasionally suggest that privacy concerns have origins that are ultimately biological.

Man likes to think that his desire for privacy is distinctively human, a function of his unique ethical, intellectual, and artistic needs. Yet studies of animal behavior and social organization suggest that man's need for privacy may well be rooted in his animal origins, and that men and animals share several basic mechanisms for claiming privacy among their fellows.⁽¹⁵⁾

Alan Westin, writing thirty years ago and clearly ahead of his time, cites some of nascent literature in human ecology and evolutionary psychology that suggests a deeper, genetic source for privacy needs and desires. My argument need not take sides on the grand questions of nature versus nurture, but I have to confess that I am sympathetic to the relevance of human biological history in providing insight into the importance of personal privacy. At least two distinct lines of reasoning support such a hypothesis.

Consider, first, the following thought experiment. You are out to dinner with a close friend and having an enjoyable meal. There is nothing particularly private about what's going on. In our culture, consuming a meal, or conversing with a friend, is something that can be, and often is, done in public. There is nothing embarrassing, shameful, discomforting, in others observing you engaged in these activities - though, of course, we can imagine other cultures where this would not be true. But, imagine that you become aware that a rude patron across the dining room is staring at you. At first you try to ignore it, but as the meal progresses you become preoccupied with this person's focused attention on you. Such behavior is inappropriate, the focused attention is indeed illegitimate, but why is it so disquieting? It seems easy to imagine this apparently inconsequential act of rudeness completely ruining the meal, causing you to leave early, and perhaps leading to verbal or physical confrontation. Why?

The relativist's argument is clear. Without rules making such focused attention illegitimate, not only would the restaurant patron's behavior not implicate your privacy, it would not be psychologically troubling at all. I find this hard to buy. Perhaps we can imagine cultures where being stared at by total strangers would be a form of flattery, or respect, and therefore the cause of no negative emotions on the part of the object of the focused attention. If there are such cultures - perhaps Hollywood is such a culture - I think it might be a case of environmental conditioning needing to overcome basic biological instincts. Many species are keenly attuned to the direction of an individual organism's gaze - both individuals of the same species, rivals, or potential mates - and individuals of different species - potential predators or prey. It would be in some sense surprising that a socially sophisticated species such as our own would not have developed very acute sensitivity to focused attention of others. And since so much of the focused attention of other organisms in nature is an occasion of danger for the object of that attention, one might expect that natural selection would result in the awareness of such attention being a cause of agitation and warning pain.

A totally different strategy for defending a biological role for privacy concerns goes directly to the "social constructionist's" home court. Ethnographic research is a mixed blessing for the cultural relativist's position on personal privacy. On the one hand, of course, anthropologists note the amazingly different privacy conventions, and the embarrassing fact that some cultures seem much less concerned with privacy than others. But, in marked contrast to this direction in the argument, is the ubiquity, perhaps universality, of privacy conventions.

Needs for individual and group privacy and resulting social norms are present in virtually every society. Encompassing a vast range of activities, these needs affect basic areas of life for the individual, the intimate family group, and the community as a whole. . . . [T]he norms vary, but the functions which privacy performs are crucial for each of these areas of social life.⁽¹⁶⁾

It is a distressingly common misunderstanding of genetic and biological views of behavior to suppose that nature and nurture are rival explanations. In fact, they are partners in full accounts of virtually everything of interest regarding individual organisms. We know, for instance, that the disposition to sing has clear genetic origins in song birds. At the same time, however, the songs they sing are learned. Indeed, if individuals are deprived an environment where they are exposed to the songs of their own species, they are doomed to producing a pitifully simple outline of the beautiful and individually unique compositions of their socially trained fellows. It may well be that the focused attention of others is capable of producing biologically based discomfort and agitation, while at the same time conceding that cultural conditioning both teaches us to accept this focused attention in many contexts, and that it defines culturally specific areas of immunity.

As Justice Brandeis saw so clearly, privacy takes account "of man's spiritual nature, of his feelings and his intellect;" "only a part of the pain, pleasure and satisfactions of life are to be found in material things." Because of this, humans desire "protect[ion] . . . in their beliefs, their thoughts, their emotions and their sensations."⁽¹⁷⁾ The focused attention of others can cause tangible pain and unhappiness. Rules that limit such psychological discomfort enjoy legitimacy for this reason alone.

Protection from the personal pain and agitation of illegitimate focused attention is a forward-looking justification that is directed toward the individual, as a unique individual. The second, and for our purposes more significant, consequentialist account of the value of personal privacy sees individuals as fundamentally social. Privacy performs a crucial social and political function in a species that has evolved to live in close proximity and association with one another. This has been appreciated in fits and starts within the privacy literature, but has most clearly been articulated in the last decade in the brilliant and important final work of Ferdinand Schoeman.⁽¹⁸⁾

Many scholars have noticed the connection between the robust protection of personal privacy and the moral and political ideals of freedom and autonomy. Their primary focus has been on political and legal liberty. This is hardly surprising, since they are all writing from within highly structured, but basically liberal, political and legal cultures. We are all rightly concerned with the focused attention of government. It's gaze is almost always evaluative, or judgmental. Are you doing something wrong? Are you obeying the rules? Is your behavior something that others should concern themselve with? Obviously this sort of institutionalized focused attention will produce significant limitations on personal choice and liberty. Liberal political cultures honor basic values that have a healthy, but profound, tension between themselves. We all desire a life of peace, tranquility, and social stability. We want to live in a genuine community where others care about us, and where everyone plays by agreed upon rules. At the same time, we desire to maximize individual freedom and autonomy. The clear political function of privacy is to allow certain very limited areas where the individual is granted immunity from the judgment of state.⁽¹⁹⁾ Though the true significance of privacy as a source of political freedom continues to be under-appreciated, privacy scholars have done a pretty good job of identifying this forward-looking social function of granting individuals immunity from the illegitimate focused attention of law and government.

What has not been clearly enough seen until very recently is that the focused attention of others who have nothing to do with institutionalized authority may be even more detrimental to individual freedom. Schoeman argues that living in close association with others and being subject to their control through focused attention is actually a precondition for freedom and autonomy.

Much of what is most important about our life would be lost, would be inaccessible to us, were we uninfluenced - unpressured, if you will - by what we see around us. Most, if not all, of our effectiveness as social agents would be undermined by the elimination of the kinds of pressures and influences that philosophers in the analytic tradition treat as rationally corrupting. . . . Most of our protections from a monolithic social and political tyranny depend on participation in associations. The survival and effectiveness of these associations presuppose the availability of forces to bring about conformity with group norms - forces such as loyalty to group participants, methods, and ends.⁽²⁰⁾

Granted that social pressure is a good thing in both the culture as a whole, and in smaller associations like family and friends. Focused attention helps produce adherence to group-defined norms. At the same time, however, too much focused attention produces blind conformity and a loss of individual autonomy. According to Schoeman, the most important function of personal privacy is to regulate the fine line between the appropriate social pressure that produces order and genuine associations, from the excessive social pressure that precludes freedom and autonomy. And as important as it is to have immunity from legal and governmental pressure, immunity from a more amorphous social pressure is even more crucial to genuine social freedom and individual liberty.

I aim to understand the dimensions of privacy that arise in our social encounters. I argue that privacy in the contexts of our social relations protects us from social overreaching - limits the control of others over our lives.⁽²¹⁾

This sort of forward-looking functional account of the value of privacy conventions does not, of course, imply any sort of conscious awareness of the salutatory effects on the part of anyone. The subtle forces of cultural selection, just like many of the factors in natural selection, may operate at levels far removed from the cultural and normative justifications familiar to most members of the society, or even to humanists and social scientists producing scholarly analyses of the conventions. The beauty of an account such as Schoeman's "overreaching hypothesis" is that it allows us to get a glimmer of the cultural mechanisms that must have been at work, even though it is hard to imagine any conclusively confirming data to be discovered, or any crucial experiment to be conducted.

VI.

From the backward looking perspective on rules we seek to understand our attitudes toward breaches of normative responsibility. How serious are they? What should be done about them? Many of us feel that violations of the social and legal norms that define privacy are very serious offenses. They make us uncomfortable, unhappy, and angry. But certainly it is more than the pain that victims feel that explains why the violation of society's defined conditions for immunity from the focused attention of others is so profoundly wrong. I think we do better to see the psychological pain, not as the normative focus of the wrong, but as a collateral symptom.

I have come to believe that what is so wrong with failing to respect a person's privacy is that we have failed to respect them generally as a person. This thesis underlies Stanley Benn's important work on personal privacy.

I am suggesting that a general principle of privacy might be grounded on the more general principle of respect for persons. By a person I understand a subject with a consciousness of himself as an agent, one who is capable of having projects, and assessing his achievements in relation to them. To conceive someone as a person is to see him as actually or potentially a chooser . . . To respect someone as a person is to concede that one ought to take account of the way in which his enterprise might be affected by one's own decisions. By the principle of respect for persons, then, I mean the principle that every human being, insofar as he is qualified as a person, is entitled to this minimal degree of consideration.⁽²²⁾

Privacy violations are a very serious form of disrespect. Respect and disrespect, of course, form an affective continuum, and disrespect - both felt and showed - comes in varying degrees. I am suggesting that the disrespect shown in the kinds of privacy violations we have been discussing fall to the extreme end of this spectrum - the constitute a kind of insult to, or even assault on, the person.

The hypothesis that privacy violations constitute a kind of disrespect or insult to the victim helps explain a number of things that have puzzled scholars. We can now easily explain why it is not necessary for the victim to be tangibly harmed by the violation because she is indifferent, or simply fails to know of the assault. You can intentionally insult me, but I may simply not care. Another may violate an area of immunity from focused attention, and I may simply be unaware of the fact. But, just as it is possible for you to grievously insult me without my knowledge, you can similarly violate my privacy while I remain in blissful ignorance.

But respect for persons will sustain an objection even to secret watching, which may do no actual harm at all. Covert observation-spying-is objectionable because it deliberately deceives a person about his world, thwarting, for reasons that cannot be his reasons, his attempts to make a rational choice. . . . C is unaware of A. . . . the significance to him of his enterprise, assumed unobserved, is deliberately falsified by A. He may be in a fool's paradise or a fool's hell; either way A is making a fool of him.⁽²³⁾

The disrespect hypothesis also beautifully accounts for the clear cultural component of personal privacy. What actions, gestures, and words, constitute an insult is clearly a matter of convention. This in no way softens the pain, or the moral importance, of the insult. One can easily imagine a culture where raising the middle finger is understood to communicate - "You're number one, you're the best." Not in our culture, however. The areas of our lives where we expect immunity from the focused attention of others is no cultural, or biological, universal. But given a particular culture where these expected areas of immunity exist, it is easy to see why the failure to honor this immunity counts as an attack on the victim's moral core.

To violate a person's privacy, to illegitimately focus attention on protected areas of their lives, is to show them great personal disrespect. It is to insult them, and in extreme cases, to subject them to a form of assault. These violations often produce great personal pain. But it is not the pain that makes them wrong from the backward looking perspective. It is rather that because the violations are so clearly wrong, the victim feels the pain. Privacy conventions establish a kind of trust between people. Failing to respect these conventions is, therefore, a breaking of trust - a kind of cheating. The voyeur, the paparazzi, the causal snoop, and the unscrupulous legal official, are engaged in an offensive form of injustice. The rules exist, others play by them, and they have taken advantage of the rules for their own benefit, but have ignored them as applied to others. Like all forms of moral offense, the backward looking perspective seeks some way, usually very imperfect, of redressing this past injustice.

VII.

I have argued that personal privacy should be understood as demarcating the bounds within which individuals are granted immunity from the focused attention of others. As the language of "personal" and "individuals" clearly indicates, there is an analytical focus on, and normative concern with, unique, freestanding, persons. The forward-looking perspective justifies this normative concern with consequentialist values such as protection from personal pain, and the furtherance of individual freedom and autonomy. The equally valid backward-looking perspective talks of respect for persons and implies a fundamental concern with the individual. All of this concern with the individual is almost definitional of contemporary liberalism. And, indeed, personal privacy is highly valued by liberals, and typically finds its strongest endorsement in liberal democracies.

Liberalism, or as Charles Taylor calls it, atomism, is a doctrine that, at least according to its critics elevates freedom and individuality above all else as fundamental political values.

Theories which assert the primacy of rights are those which take as the fundamental, or at least a fundamental, principle of their political theory the ascription of certain rights to individuals and which deny the same status to a principle of belonging or obligation, that is a principle which states our obligation as men to belong to or sustain society, or a society of a certain type. Primacy-of-right theories in other words accept a principle ascribing rights to men as binding unconditionally, binding, that is, on men as such. But they do not accept as similarly unconditional a principle of belonging or obligation.⁽²⁴⁾

I doubt that this is a fair characterization of contemporary liberalism, but I will leave for another occasion a defense of that thesis. I want, rather, to explore the counterposition that assumes it as the beginning point for analysis and critique.

Communitarian political thinkers attack the theoretical foundations of liberalism on a number of closely related grounds. According to Sandel, the "unencumbererd self" that is the starting point for classical social contract arguments is not just a fiction, but an incoherent idea.⁽²⁵⁾

To be the sort of mature, reflective, thinker that Hobbes or Locke require in order to rationally bargain in a state of nature, or that Rawls explicitly demands for the decisions about justice in the original position, assumes a pre-existing social environment. One is never free of the social conditioning that so obviously fashions each of us into the persons we truly are. One, certainly, cannot leave values and conceptions of the good behind a veil of ignorance, for the purposes of determining the basic political and legal structure of some new imagined society. People are who they are, including their most basic normative and intellectual intuitions, because of the culture and social environment they have been nurtured in. In addition, as Taylor so effectively argues, liberals cannot consistently elevate liberal values like freedom, autonomy, and individual rights, to a unique first conceptual priority. The problem is not that these values are not important and deserving of honor and protection, but rather that they causally and conceptually presuppose other normative obligations. Such luxuries as freedom, privacy, and individual rights all presuppose certain forms of association or community. And if the connection between a community, society, and government, on the one hand, and important liberal values like freedom, equality, and personal privacy, on the other, is truly a necessary one, than the liberal is forced to extend equal normative importance to other group-centered political values like an obligation to belong to and help sustain society, or a genuine acceptance of the legitimacy and need for binding legal and political authority over individuals.

Although I am extremely reluctant to grant the communitarian analysis the status of a complete and fair characterization of classical or contemporary liberalism, and I am unwilling to concede anything like a decisive refutation of liberal political theory, I do believe that communitarians have made many valid points that have tended to be ignored, or at best insufficiently addressed, by contemporary liberals. If not at its theoretical core, than at least in rhetoric and analytic attention, liberalism probably has been guilty of so emphasizing individualistic political values that it has neglected equally important group values. Although it is a dangerous metaphor to treat groups as personified organic wholes, we all understand - liberals, conservatives, and communitarians, alike - that societies have needs that are sometimes at odds with the needs and desires of the individuals who make up those societies. And the strong conception of personal and legal privacy I have been defending here, seems in some contexts to be precisely the sort of individualistic value that stands in genuine conflict with group-centered values like social efficiency, public safety and order, and effective law enforcement.

I fully concede that enthusiastic respect for personal and legal privacy will come at some genuine cost to society as a whole. This is clearest, I think, in the context of government regulation and control. But, there may be a substantial social cost to recognizing a more general immunity from the illegitimate focused attention of others, as well. The liberal defense of personal privacy must begin with a thorough exposition and analysis of the nature and value of privacy of the sort I have sketched here today. But it must also go on to acknowledge these tangible social and legal costs. Liberals will need to show that there is enough personal, but ultimately social, return to justify these costs.

Communitarians and other privacy skeptics may argue that the social costs are simply too high, but I think this argument will prove unpersuasive in most contexts. I can easily enough imagine specific instances where a social need emerges as so central that the culture may evolve in such a way as to treat the focused attention of others as now being legitimate within a narrowly defined context, where it once was considered illegitmate. Most of us, to take one relatively trivial example, have come to see airport metal detectors as a legitimate sort of focused attention on our selves and our possessions. I can even grudgingly concede contexts in which an illegitimate focused attention by government on the individual is permitted by overriding social need. But, here, I would insist on two conditions that I think are too seldom addressed by privacy skeptics. First, such "exigent circumstances" must be clearly and narrowly defined. And, secondly, society has an obligation to thoroughly make its case that the social need is truly great enough to trump the individual's interest, if not right, in an immunity from the illegitimate focused attention of government. Vague generalities like the war on drugs, or the need to control crime, will never be sufficient by themselves. The very specific cost of society's infringing on the individual's personal privacy will have to be balanced against the equally specific advantage to the group of allowing such an infringement. And though I concede that the balance will occasionally tip to the needs of society and government, I remain optimistic, however, that it will often lean toward individuals and their privacy.

Immunity from the focused attention of others, in very limited and culturally defined areas, is socially and legally important. Western culture and liberal democracies have long reconized its value. Liberals should not be embarrassed that honoring this value occasionally proves socially inconvenient. This is true of all important rights. Of course the complexities of modern life require some balancing of personal privacy against other social considerations. Liberals must continue to insist, however, that when such social and judicial balancing is undertaken it be in a context where the full normative and political value of privacy is given equal consideration with whatever social need that might presume to trump it. Only then will we be in a position to appreciate why a general social and legal respect for personal privacy is cost, occasionally a high cost, that we should all be willing to pay.

1. Declaration of Independence
2. Mill, Utilitarianism, pp. 65-6.
3. Ruth Gavison, "Privacy and the Limits of the Law, in Schoeman, p. 347.
4. Parent, op. cit., p. 269.
5. Stanley Benn, "Privacy, Freedom, and Respect for Persons," in Schoeman, p. 224.
6. DeCew, op cit.
7. Gavison, op. cit.
8. Amitai Etzioni, The Limits of Privacy, p. 196.
9. Jeffery L. Johnson, "Privacy and the Judgment of Others," p. 157.
10. Rachels, and perhaps quote Feinberg in the note.
11. Gavison, op. cit., p. 350.
12. Reference to Pike's article on evil.
13. Inness, p. 18.
14. Rawls, p. 23.
15. Westin, op. cit., p. 56.
16. Westin, op. cit., p. 61.
17. Olmstead, op. cit.
18. Shoeman
19. My work on privacy, particularly "Constitutional Privacy."
20. Shoeman, p. 3.
21. Ibid, p 1.
22. Benn (Schoeman) pp. 228-9.
23. Benn, 230.
24. Taylor, p. 30.

25. Sandel both book and article.